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Shklyar v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

November 18, 2019

ELENA SHKLYAR, Plaintiff,
v.
CITY OF PITTSBURGH, Defendant.

          OPINION AND ORDER

          Marilyn J. Horan United States District Judge.

         On November 26, 2018, Plaintiff Elena Shklyar filed suit against Defendant, City of Pittsburgh, alleging violations of Title VII of the Civil Rights Act; the Americans with Disabilities Act (ADA); the Pennsylvania Human Relations Act (PHRA); and 42 U.S.C. § 1983. (ECF No. 1). The City filed a Motion to Dismiss for Failure to State a Claim, (ECF No. 9), after which Ms. Shklyar amended her Complaint, (ECF No. 12). In response to Ms. Shklyar's Amended Complaint, the City filed a partial Motion to Dismiss, arguing that the Court should dismiss Counts II, III, and V in their entirety, as well as the retaliation claims under Count IV. (ECF No. 16). Both parties have briefed the issues raised as to the aforementioned Counts, (ECF Nos. 17, 20, 21, 22), and oral argument was held before this Court on September 12, 2019. The Motion is now ripe for decision.

         For the following reasons, the partial Motion to Dismiss will be granted.

         I. Background

         According to the Amended Complaint, Ms. Shklyar was born in the Soviet Union, where she received "the equivalent of a Bachelor's/Master's hybrid degree in accounting and finance" and "minored in business information systems" with a focus on computers. (ECF No. 12, at ¶¶ 19, 21). Ms. Shklyar arrived in the United States in 1989 and obtained U.S. citizenship in 1995. Id. at ¶¶ 20, 24. Ms. Shklyar speaks English as her second language. Id. at ¶ 23. While living in the United States, she completed courses to supplement her computer skills. Id. at ¶ 22. The City of Pittsburgh hired Ms. Shklyar in November 1998 and offered her full-time employment in July 2000, where her official title within the Department of Innovation and Performance became Client Application Developer. Id. at ¶¶ 26, 28, 30.

         On September 21, 2017, the City informed Ms. Shklyar that on December 31, 2017, her position as Client Action Developer would be "eliminated due to lack of work." Id. at ¶ 39. Lee Haller, Director of the Department of Innovation and Performance, indicated that it was his decision to terminate her because he "need[ed] to have the best staff in place to meet all the responsibilities on [their] plate." Id. at ¶¶ 90, 91. Ms. Shklyar alleges that six other employees' positions in other departments were eliminated as part of the City's fall 2017 reduction. Id. at ¶ 139. However, of over sixty-five positions in her department, Ms. Shklyar contends hers was the only position eliminated, and that her department hired at least twenty-three new employees after informing her that her position would be eliminated due to lack of work. Id. at ¶¶ 83, 85.

         Around the time that Ms. Shklyar was informed that her position would be eliminated, Ms. Shklyar's supervisor, Heidi Norman, expressed a preference for a male employee because "at least [she] can understand him." Id. at ¶¶ 41, 81, 82. Based on this statement, in December 2017, [1] Ms. Shklyar spoke with the mayor's then-chief of staff, Kevin Acklin, about her fears of being targeted because of her national origin. Id. at ¶¶ 42, 43. Mr. Acklin informed Ms. Shklyar that she had no reason to worry. Id. at ¶¶ 43, 44. However, councilwoman Darlene Harris expressed concern to the City Council that terminating Ms. Shklyar, a Jewish Refugee, might expose the City to liability. Id. at ¶ 44. Ms. Shklyar also contends that she was not the only employee to allege discrimination against the City and that she was targeted for termination due to her supervisor's discriminatory animus. Id. at ¶ 142.

         Ms. Shklyar was terminated from the Department of Innovation and Performance on December 31, 2017, in accordance with the notice she received three months prior in September 2017. Id. at ¶ 39. After meeting with the City to find alternate employment, Ms. Shklyar secured a new position with the Department of Public Works beginning on January 2, 2018. Id. at ¶¶ 46, 47, 51. Ms. Shklyar contends she was assured the new position would be in an office; however, the position required performing inventory in a warehouse. Id. at ¶¶ 49, 51. Unfortunately, Ms. Shklyar had an allergic reaction to the "extraordinary amount of dust" in the warehouse. Id. at ¶ 53. Her doctor prescribed steroids and informed her that she could not continue to work in that environment. Id. at ¶ 54.

         Between January 2, 2018 and February 1, 2018, Ms. Shklyar applied for another position as a Business Analyst with the City. Id. at ¶¶ 51, 56, 60. Ms. Shklyar obtained additional training for this position at the City's request, and she was notified that she was qualified for the position. Id. at ¶¶ 57, 73. However, she was never interviewed for the Business Analyst position. Id. at ¶ 58. Around the same time, the City stated that it could not accommodate Ms. Shklyar's physician's request to move her from the warehouse because the essential duties of her position required her to be in the warehouse. Id. at ¶¶ 60, 73. Ms. Shklyar was terminated from the Department of Public Works on February 1, 2018. Id. at ¶ 60.

         Based on the foregoing, Ms. Shklyar filed a complaint with the Equal Employment Opportunity Commission, and upon receiving a right-to-sue letter, filed the present suit. Id. at ¶ 13. In her Amended Complaint, Ms. Shklyar brings five Counts. In Count I, Ms. Shklyar alleges a national origin discrimination claim under Title VII. Id. at ¶¶ 78-101. Next, in Count II, she brings a disability discrimination claim under the Americans with Disabilities Act (ADA). Id. at ¶¶ 102-13. In Count III, Ms. Shklyar alleges retaliation claims under both Title VII and the ADA. Id. at ¶¶ 114-25. Further, in Count IV, Ms. Shklyar brings national origin discrimination, disability discrimination, and retaliation claims under the Pennsylvania Human Relations Act (PHRA). Id. at ¶¶ 126-32. Finally, in Count V, Ms. Shklyar alleges a violation of the Fourteenth Amendment's Equal Protection Clause, pursuant to 42. U.S.C. § 1983. Id. at ¶¶ 133-47. The City's partial Motion to Dismiss challenges the sufficiency of Counts II, III, and V, as well as the retaliation claims under Count IV. (ECF No. 16).

         II. Standard of Review

         In accordance with Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A pleading may be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). To survive such a motion to dismiss, the short and plain statement of the claim must contain sufficient factual allegations "to raise a right of relief above the speculative level." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). Thus, to state a claim, the complaint must contain enough factual matter, taken as true, to show that the claim is plausible. Id. at 556. Stated differently, a claim is facially plausible when the pleading contains sufficient facts to draw a reasonable inference that the defendant is liable for the conduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court clarified that this plausibility standard should not be conflated with a higher probability standard. Id.

         The reviewing court must undertake a three-step analysis to determine if a complaint will survive a motion to dismiss. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, the court must identify the elements necessary to state the claim. Id. Second, it must ignore pure legal conclusions, and it need not accept "unsupported conclusions and unwarranted inferences." Id; Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013). Finally, with the well-pleaded facts remaining, it must "determine whether they plausibly give rise to an entitlement to relief." Connelly, 809 F.3d at 787 (citing Iqbal, 556 U.S. at 676). The plausibility of the well-pleaded facts is judged using the court's "judicial experience and common sense." Iqbal, 556 U.S. at 679.

         III. Discussion

         The City seeks dismissal of Counts II, III, and V, as well as part of Count IV. While the City views each of the incidents alleged in the Amended Complaint in an isolated manner, Ms. Shklyar argues that the incidents should be viewed holistically, as interrelated events. Accordingly, the Court will analyze the claims in what the Court understands to be the chronological order of events, beginning with the Title VII retaliation claim, then proceeding on to the ADA discrimination and ADA retaliation claims. Finally, the Court will address the § 1983 and PHRA claims.

         A. Title VII retaliation claim

         The City does not challenge the sufficiency of Ms. Shklyar's Title VII claim in Count I, but moves to dismiss Ms. Shklyar's Title VII retaliation claim, found in Count III of the Amended Complaint. Title VII states that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits an employer from discriminating against an employee who has opposed an employer's discriminatory conduct or "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" related to an employer's discriminatory conduct. 42 U.S.C. § 2000e-3(a). To establish a prima facie case for Title VII retaliation, a plaintiff must show that (1) she engaged in conduct protected by Title VII; (2) her employer took adverse action against her; and (3) a causal link existed between her protected conduct and the employer's adverse action. Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016); Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006).

         The City does not dispute that Ms. Shklyar's complaint to then-chief of staff Kevin Acklin constitutes protected conduct under Title VII. Rather, the City moves to dismiss this claim on the basis that Ms. Shklyar failed to show she engaged in protected conduct before the alleged adverse employment action, that is, her termination in December 2017, occurred. (ECF No. 17, at 9). To the contrary, Ms. Shklyar alleges that the City retaliated against her through several adverse employment actions: the December 2017 termination, her placement in a warehouse position, and the February 2018 termination. (ECF No. 12, at ¶¶ 115, 116, 118). This dispute between the parties raises three issues: first, whether there is a causal connection between the protected conduct- Ms. Shklyar's complaint to Mr. Acklin-and her December 2017 termination from her original position; second, whether the City's hiring of Ms. Shklyar for the warehouse position is an adverse employment action, and if so, whether there is a causal connection between her hire and her complaint to Mr. Acklin; and third, whether there is a causal connection between Ms. Shklyar's complaint to Mr. Acklin and her February 2018 termination from the warehouse position.

         i. Causal nexus between complaint to Mr. Acklin and December 2017 termination

         First, Ms. Shklyar must prove that a causal link connects her complaint to Mr. Acklin to her termination from the Department of Innovation and Performance in December 2017. To show the existence of a causal link, a plaintiff must plead facts showing: "(1)an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Whether temporality alone is sufficient to establish a causal nexus is largely ...


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